Vaccaro v. St. Vincent's Med. Ctr.

• Decision Date: 23 March 2010
• Citation: 898 N.Y.S.2d 163,71 A.D.3d 1000
• Parties: Barbara VACCARO, et al., appellants, v. ST. VINCENT'S MEDICAL CENTER, et al., respondents, et al., defendant.
• Court: New York Supreme Court — Appellate Division

898 N.Y.S.2d 163
71 A.D.3d 1000

Barbara VACCARO, et al., appellants,
v.
ST. VINCENT'S MEDICAL CENTER, et al., respondents, et al., defendant.

Supreme Court, Appellate Division, Second Department, New York.

March 23, 2010.

898 N.Y.S.2d 164

Charles H. Burger (Marvin Ben-Aron, Staten Island, N.Y., of counsel), for appellants.

898 N.Y.S.2d 165

Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. (Jacqueline Mandell of counsel), for respondents St. Vincent's Medical Center, Lilibeth Rubio-Gonzales, and Dorotea DeFrancesco.

Garbarini & Scher, P.C., New York, N.Y. (William D. Buckley of counsel), for respondents Healthcare Associates in Medicine, P.C., Neuroscience Associates of N.Y., and Sharon Osborn.

REINALDO E. RIVERA, J.P., MARK C. DILLON, ARIEL E. BELEN, and L. PRISCILLA HALL, JJ.

71 A.D.3d 1000

In an action, inter alia, to recover damages for medical malpractice, the plaintiffs appeal from (1) an order of the Supreme Court, Richmond County (McMahon, J.), dated December 27, 2007, which granted the motion of the defendants St. Vincent's Medical Center, Lilibeth Rubio-Gonzales, and Dorotea DeFrancesco, and the separate motion of the defendants Healthcare Associates in Medicine, P.C., Neuroscience Associates of N.Y., and Sharon Osborn for summary judgment dismissing the complaint insofar as asserted against them, and (2) a judgment of the same court dated February 8, 2008, which, upon the order, is in favor of those defendants and against them dismissing the complaint insofar as asserted against those defendants.

ORDERED that the appeal from the order is dismissed; and it is further,

71 A.D.3d 1001

ORDERED that the judgment is modified, on the law, by deleting the provision thereof dismissing the complaint insofar as asserted against the defendants St. Vincent's Medical Center, Lilibeth Rubio-Gonzales, Healthcare Associates in Medicine, P.C., Neuroscience Associates of N.Y., and Sharon Osborn; as so modified, the judgment is affirmed insofar as appealed from, those branches of the motion of the defendants St. Vincent's Medical Center and Lilibeth Rubio-Gonzales which were for summary judgment dismissing the complaint insofar as asserted against them and the separate motion of the defendants Healthcare Associates in Medicine, P.C., Neuroscience Associates of N.Y., and Sharon Osborn for summary judgment dismissing the complaint insofar as asserted against them are denied, the order dated December 27, 2007, is modified accordingly, the complaint is reinstated against those defendants, and the action against the defendant Dorotea DeFrancesco is severed; and it is further,

ORDERED that one bill of costs is awarded to the defendant Dorotea DeFrancesco, payable by the plaintiffs, and one bill of costs is awarded to the plaintiffs, payable by the defendants St. Vincents's Medical Center, Lilibeth Rubio-Gonzales, Healthcare Associates in Medicine, P.C., Neuroscience Associates of N.Y., and Sharon Osborn.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501[a][1] ).

On November 5, 2001, the plaintiff Barbara Vaccaro (hereinafter Vaccaro) underwent a C4-C5 posterior foraminotomy decompression at the defendant St. Vincent's Medical Center (hereinafter the Hospital). The surgery was performed by the defendant John Sou-Cheng Shiau, M.D. (hereinafter Dr. Shiau), who was assisted by the defendant Lilibeth Rubio-Gonzales, M.D., an anesthesiologist (hereinafter Dr. Rubio-Gonzales), the defendant Dorotea DeFrancesco, a certified...